Employee says New Jersey-based employer retaliated against him for taking leave for coronavirus

Dive Brief:

A former marketing director for New Jersey-based health system Alaris Health has sued the company alleging that it unlawfully fired him after he attempted to return to work following a COVID-19 infection (Domenech v. Alaris Health, LLC, et. al, No. HUD-L-000056-21 (N.J. Jan. 6, 2021)).
The plaintiff joined Alaris in 2017, per the filing, but was sent a new job description at the beginning of the coronavirus pandemic and asked by his supervisor to act as a nurse at one of Alaris' nursing home facilities even though the plaintiff's nursing license had expired. After the plaintiff objected to the assignment in part due to a need to care for his immunosuppressed father, Alaris asked him to perform nursing care at a different facility.
The plaintiff objected to the assignment, alleging that the second facility failed to provide personal protective equipment. He later tested positive for COVID-19 and took a medical leave of absence. After recovering, he asked that he be allowed to work from home, but Alaris denied the request. After receiving a negative COVID-19 test, the plaintiff attempted to return to in-person work, but he was sent home on grounds that he was not approved to return and did not receive any further communication from Alaris.

Dive Insight:

The suit alleged that the employer violated New Jersey's Conscientious Employee Protection Act as well as the New Jersey Law Against Discrimination when it allegedly terminated the plaintiff. The suit is just one of a growing number of cases throughout the country related to employment decisions in the context of COVID-19.

Management-side experts anticipate employers will see even more legal activity along these lines in 2021. A Jan. 5 report from Seyfarth Shaw LLP tallied at least 1,005 workplace lawsuits related to COVID-19, the vast majority of which dealt with termination. Other prominent matters included safety, paid leave under the Families First Coronavirus Response Act and other wage and hour provisions.

Termination remains a challenge given the impact of business closures and of the general economic downturn produced by the pandemic. HR teams began to see this trend during the earliest wave of layoffs, as cases cropped up over employers' alleged failures to provide advance notice of layoffs under the Worker Adjustment and Retraining Notification (WARN) Act. As the pandemic continued into the fall, what may have once been temporary furloughs began to present a growing compliance risk to employers.

At the federal level, enforcement of guidelines pertaining to COVID-19 is likely to grow under the incoming Biden administration, sources previously told HR Dive. The president-elect has already said he will ask the Occupational Health and Safety Administration (OSHA) to reconsider its decision not to issue emergency standards for COVID-19 workplace safety, and said he would ask OSHA to target violators while increasing the number of inspectors at the agency.

Other stakeholders, including the U.S. Chamber of Commerce have called for a "liability safe harbor" to shield businesses and other entities from lawsuits and legal fees.